Veterans' Appeals

What GAO Found

The Department of Veterans Affairs’ (VA) plan for implementing a new disability appeals process while attending to appeals in the current process addresses most, but not all, elements required by the Veterans Appeals Improvement and Modernization Act of 2017 (Act). VA’s appeals plan addresses 17 of 22 required elements, partially addresses 4, and does not address 1. For example, not addressed is the required element to include the resources needed by the Veterans Benefits Administration (VBA) and the Board of Veterans’ Appeals (Board) to implement the new appeals process and address legacy appeals under the current process. VA needs this information to certify, as specified under the Act, that it has sufficient resources to implement appeals reform and make timely appeals decisions under the new and legacy processes.

VA’s appeals plan reflects certain sound planning practices, but it could benefit from including important details in several key planning areas:

Performance measurement: VA’s plan reflects steps taken to track performance, but could articulate a more complete and balanced set of goals and measures for monitoring and assessing performance on a range of dimensions of success. Specifically, the plan reports that VA is developing a process to track timeliness of the new and legacy processes. However, contrary to sound planning practices, the plan does not include timeliness goals for all five appeals options available to veterans, does not include goals or measures for additional aspects of performance (such as accuracy or cost), and does not explain how VA will monitor or assess the new process compared to the legacy process. Unless VA clearly articulates a complete and balanced set of goals and measures, it could inadvertently incentivize staff to focus on certain aspects of appeals performance over others or fail to improve overall service to veterans.

Project management: VA’s plan includes a master schedule for implementing the new appeals plan; however, this schedule falls short of sound practices because it does not include key planned activities—such as its pilot test of two of the five appeals options. In addition, the schedule does not reflect other sound practices for guiding implementation and establishing accountability—such as articulating interim goals and needed resources for, and interdependencies among, activities. Unless VA augments its master schedule to include all key activities and reflect sound practices, VA may be unable to provide reasonable assurance that it has the essential program management information needed for this complex and important effort.

Risk assessment: VA has taken steps to assess and mitigate some risks related to appeals reform by, for example, pilot testing two of the five appeals options through its Rapid Appeals Modernization Program (RAMP). However, as designed, RAMP does not include key features of a well-developed and documented pilot test. For example, VA has not articulated how it will assess RAMP before proceeding with full implementation. In addition, RAMP is not pilot testing three options and, as a result, VA will not have data on the extent to which veterans will appeal directly to the Board when given the option. Unless VA identifies and mitigates key risks associated with implementing a new process, VA is taking a chance that untested aspects will not perform as desired.

Why GAO Did This Study

VA’s disability compensation program pays cash benefits to veterans with disabilities connected to their military service. In recent years, the number of appeals of VA’s benefit decisions has been rising. For decisions made on appeal in fiscal year 2017, veterans waited an average of 3 years for resolution by either VBA or the Board, and 7 years for resolution by the Board. The Veterans Appeals Improvement and Modernization Act of 2017 makes changes to VA’s current (legacy) appeals process, giving veterans new options to have their claims further reviewed by VBA or appeal directly to the Board. The Act requires VA to submit to Congress and GAO a plan for implementing a new appeals process, and includes a provision for GAO to assess VA’s plan.

This testimony focuses on the extent to which VA’s plan: (1) addresses the required elements in the Act, and (2) reflects sound planning practices identified in prior GAO work. GAO’s work entailed reviewing and assessing VA’s appeals plan and related documents against sound planning practices, and soliciting VA’s views on GAO’s assessments.

What GAO Recommends

In its forthcoming report, GAO is considering recommending that VA: fully address all legally required elements in its appeals plan, articulate how it will monitor and assess the new appeals process as compared to the legacy process, augment its master schedule for implementation, and more fully address risk.

By its own terms, the VAIMA does not go into effect until February 2019 and does not apply to current claims and appeals, but recently, VA announced that it was initiating this month the Rapid Appeals Modernization Program (RAMP), to provide some of the benefits of the VAIMA. Participation is voluntary at this time.

In this respect, as to whether to stay in the current appeals process, which is called “legacy,” or to opt-in and participate in RAMP, one needs to keep in mind that once you leave “legacy,” you cannot go back. Your appeal stays in RAMP.

I mention this as an important consideration because RAMP is being initiated without any implementing regulations at all. Let me explain. A statute, like the VAIMA, is a law. In turn, to implement a law, the appropriate agency drafts regulations, putting into place “rules” that govern how that agency enacts, applies, and enforces the statute, the law; in other words, the “rules” lay out what the law really means and its legal and practical effects. There is none of that with RAMP.

Veterans Affairs Press Release

11/02/2017 WASHINGTON

Veterans Affairs announced that it will launch the Rapid Appeals Modernization Program, or “RAMP,” with the goal of providing Veterans with the earliest possible resolution of their disagreement with VA’s decision on their benefit claims.

RAMP will provide expanded opportunities for Veterans to enter the new, more efficient claims review process outlined in the Veterans Appeals Improvement and Modernization Act of 2017, which was signed into law by President Donald J. Trump on Aug. 23.

“At its core, VA’s mission is to provide Veterans with the highest quality of service,” said VA Secretary Dr. David J. Shulkin. “The new process under the RAMP initiative reflects major steps in not only VA’s effort of continuous improvement, but also in providing greater choice for Veterans and their families.”

VA began its 18-month implementation of the new process immediately after the bill became law.

By February 2019, all requests for review of VA decisions will be processed under the new, multi-lane process. VA’s legacy appeals process was slow and complex. The new law streamlines the process and includes safeguards ensuring claimants receive the earliest effective date possible for their claims.

Participation in RAMP is voluntary; however, Veterans can expect to receive a review of VA’s initial decision on their claim faster in RAMP than in the legacy appeals process. The initiative allows participants to have their decisions reviewed in the Higher-Level or Supplemental Claim review lanes outlined in the law.

The reviewer can overturn previous decisions based on a difference of opinion, or return it for correction. Participants who select the Supplemental Claim Lane may submit new evidence and may receive VA’s assistance in developing evidence in support of their claim.

Veterans who disagree with the decisions they receive in RAMP can appeal to the Board of Veterans’ Appeals in the new process and have their appeal decided by the Board when the new law becomes effective in February 2019. Veterans who participate in RAMP will not be able to return to the legacy appeals process.

VA encourages eligible Veterans with pending appeals to participate in RAMP and the benefits of the new review process. VA will begin sending eligible Veterans an invitation to participate in early November and continue the program until February 2019.

VA will continue working with Congress, Veterans Service Organizations and other Veteran advocates to implement the new appeals process over the next several months as VA continues to make bold, positive change on behalf of Veterans, their families and survivors.

Curtis Scott appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his claim for service connection for hepatitis C. We affirm.

BACKGROUND

Scott served on active duty for training in the United States Marine Corps Reserve from January to July 1972. On November 18, 1999, Scott tested positive for hepatitis C. He applied for disability benefits on February 4, 2005, alleging that he contracted hepatitis C in service. His primary theory was that he was infected with hepatitis C when he received air-gun inoculations during his military service. The Department of Veterans Affairs (“VA”) regional office (“RO”) denied Scott’sclaim for service connection on September 20, 2005.

[/ezcol_1half] [ezcol_1half_end]This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015):

In this case, the incarcerated Appellant requested a Board hearing and noted that his next potential opportunity for parole was over a year later. The RO scheduled the hearing in the interim and the Appellant did not attend. The Appellant requested a rescheduled hearing, but the Board denied the Appellant’s request and denied the appeal on the merits. The claim was appealed to the CAVC, where the Appellant was represented by counsel. The hearing issue was not raised to the CAVC, but the case was remanded on other grounds. The Board then remanded the case to the RO for additional development while noting that the Appellant “has not renewed his request” for a hearing. The Board eventually denied the claim again. During the second appeal to the CAVC, the Appellant argued that the Board erred by denying him his right to a hearing. The CAVC refused to consider the argument because it had not been raised either in the prior CAVC appeal or to the Board during the intervening proceedings.The Federal Circuit affirmed the CAVC. In doing so, it acknowledged that the doctrine of issue exhaustion was appropriate both before the Board and the CAVC in certain circumstances. However, the Federal Circuit also noted that the Board has a special obligation to read filings liberally, whether submitted by counsel or pro se appellant.

The Federal Circuit then analyzed what constituted a liberal construction for these purposes, stating: “There is a significant difference between considering closely-related theories and evidence that could support [an Appellant’s] claim for disability benefits and considering procedural issues that are collateral to the merits.” The Federal Circuit stated that, for procedural issues, an Appellant’s interest “may be better served by resolution of his claims” rather than by a remand that may not change the final outcome. As a result, the Federal Circuit stated: “Having initially failed to raise the procedural issue, the [Appellant] should not be able to resurrect it months or even years later when, based on new circumstances, the [Appellant] decides that raising the issue is now advantageous.” Accordingly, the Federal Circuit held: “[t]he Board’s obligation to read filings in a liberal manner does not require the Board or the [CAVC] to search the record and address procedural arguments when the [Appellant] fails to raise them before the Board.

”This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.

[/ezcol_1half_end]On April 24, 2006, Scott appealed to the Board of Veterans’ Appeals (“Board”) and requested an evidentiary hearing before the Board. See 38 C.F.R. § 20.700(a) (right to a hearing). Scott was incarcerated at the time of his appeal to the Board. On December 6, 2007, the RO sent a letter to Scott, “acknowledg[ing] [his] request for a Video Conference hearing before the Board,” and “request[ing] that [Scott] provide us with the date [Scott is] expected to be released from [his] incarceration so we may schedule [his] video conference hearing accordingly.” J.A. 575. Scott responded to the RO on December 13, 2007, reiterating his request for a hearing and informing the Board that his “minimum expiration parole date for release is January 1377*1377 13, 2017,” and his “next parole review date is scheduled for March of 2009.” J.A. 573. On January 14, 2008, the RO notified Scott that his hearing had been scheduled for March 14, 2008, in Houston, Texas.Scott, who was still incarcerated on the scheduled hearing date, failed to appear for the hearing.

On March 23, 2008, Scott requested a rescheduled hearing because he “could not appear for [his] hearing because of [his] incarceration.” J.A. 826. The Board denied Scott’s request, finding that Scott had “not shown good cause for failing to appear for [his] hearing,” but made no mention of Scott’s incarceration. J.A. 683. The Board subsequently denied Scott’s claim for service connection, noting thatScott “failed to report for his scheduled hearing in March 2008” and that the Board denied his request to reschedule it. J.A. 677.

On appeal to the Veterans Court, Scott, who by this time was represented by counsel, did not raise the hearing issue. The Veterans Court vacated and remanded to the Board due to an inadequate medical examination, without mentioning the hearing issue. In remanding to the RO, the Board noted the hearing issue but that Scott “has not renewed his request” for a hearing. J.A. 221. On November 18, 2011, the RO continued the service connection denial without mentioning the hearing issue. Scott again appealed to the Board via a re-certification of appeal form which checked “YES” in answer to “WAS HEARING REQUESTED?”, but Scott did not raise the hearing issue with the Board. J.A. 183. The Board affirmed, again noting that Scott “has not renewed his request” for a hearing. J.A. 16.

On appeal to the Veterans Court, on July 26, 2013, Scott raised the hearing issue for the first time since his March 23, 2008, request for a rescheduled hearing. The Veterans Court affirmed, holding that Scott “did not raise this [hearing] issue in either proceeding,” referring to Scott’s prior appeal to the Veterans Court and his current appeal before the Board. J.A. 1-2. The Veterans Court held that raising the hearing issue at this late stage “amounts to an effort to engage in undesirable piecemeal litigation, and [Scott] provides no compelling basis to permit it.” J.A. 2.Scott appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). We review legal determinations of the Veterans Court de novo. Moffitt v. McDonald, 776 F.3d1359, 1364 (Fed.Cir.2015).

DISCUSSION

I

The Supreme Court has recognized the importance of issue exhaustion with respect to administrative tribunals. In United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), the Court held that “orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while [the agency] has opportunity for correction in order to raise issues reviewable by the courts,” such that “as a general rule … courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” Id. at 37, 73 S.Ct. 67.[1] But Scott argues that the Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), precludes 1378*1378 application of the issue exhaustion doctrine in the context of veterans benefits because proceedings before the VA are non-adversarial in nature.

We addressed this issue even before the Supreme Court’s decision in Sims, inMaggitt v. West, 202 F.3d 1370 (Fed.Cir.2000). We articulated a case-by-case balancing test for issue exhaustion in the VA system: “The test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). We remanded to the Veterans Court to determine, inter alia, “whether invocation of the exhaustion doctrine [was] appropriate” with respect to the veteran’s request to reopen his claim for service connection based on constitutional and statutory arguments that he had not raised before the Board. Id. at 1378-79.

Thereafter, in Sims, the Supreme Court addressed issue exhaustion in the context of Social Security Administration (“SSA”) benefits. The Court noted that “SSA regulations do not require issue exhaustion.” 530 U.S. at 108, 120 S.Ct. 2080. When that is so, “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Id. at 109, 120 S.Ct. 2080. A plurality of the Court concluded that “[t]he differences between courts and agencies are nowhere more pronounced than in Social Security proceedings,” such that “a judicially created issue-exhaustion requirement is inappropriate.” Id. at 110, 112, 120 S.Ct. 2080. But the majority also recognized that “it is common for an agency’s regulations to require issue exhaustion in administrative appeals. And when regulations do so, courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.” Id.at 108, 120 S.Ct. 2080 (citations omitted). Justice O’Connor’s concurrence also made clear that Sims does not apply, and exhaustion is required, where applicable statutes or regulations impose an exhaustion requirement. See id. at 113, 120 S.Ct. 2080 (O’Connor, J., concurring). Thus, in light of Sims, we must determine the extent to which statutes or agency regulations require issue exhaustion in the veterans benefits context.

In previous veterans’ cases we have considered issue exhaustion in three specific contexts and have held that the statutes and regulations require issue exhaustion in appropriate circumstances. First, in an appeal from the RO to the Board, 38 C.F.R. § 20.202 specifically requires that the errors by the RO be identified either by stating that all issues in the statements of the case are being appealed or by specifically identifying the issues being appealed.[2]See Robinson v. Shinseki,557 F.3d 1355, 1361 (Fed.Cir.2009) (“We … do not suggest that under the regulations 1379*1379 the veteran is entirely relieved of his or her obligation to raise issues in the first instance before the VA where the record is being made. The regulations quite clearly impose such an obligation even in direct appeals….” (citing 38 C.F.R. § 20.202)).

Second, where the alleged error was made by the Board, we have held that the statute, 38 U.S.C. § 7252(a), requires issue exhaustion before the Board in appropriate circumstances.[3]See Ledford v. West, 136 F.3d 776, 779-80 (Fed.Cir.1998) (Under § 7252, “the [Veterans C]ourt’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed,” and “while the doctrine of exhaustion of administrative remedies is not jurisdictional,” exhaustion is normally required.). Thereafter, in Maggitt, we held that exhaustion was not required in all cases, distinguished Ledford, and concluded that “[n]othing in the statutory scheme providing benefits for veterans mandates a jurisdictional requirement of exhaustion of remedies which would require the Veterans Court to disregard every legal argument not previously made before the Board.” See202F.3d at 1376-77. As noted above, “the test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy, 503 U.S. at 146, 112 S.Ct. 1081).

In Bernklau v. Principi, 291 F.3d 795 (Fed.Cir.2002), decided after Sims, we upheld the Veterans Court’s application of issue exhaustion to arguments that the veteran had failed to raise before the Board, holding that Maggitt did not require an explicit balancing of interests in the individual case. See id. at 799, 801-02. We held that new arguments for an earlier effective date based on past events allegedly supporting an informal claim for individual unemployability “TDIU” were properly rejected as not raised before the Board. See id. at 800-02.[4]

Third, in an appeal from the Veterans Court to this court we have held that 38 U.S.C. § 7292(a) requires issue exhaustion at the Veterans Court level.[5] InBelcher v.1380*1380West, 214 F.3d 1335 (Fed.Cir.2000), we explained that “38 U.S.C. § 7292(a) speaks directly to the requirement of issue exhaustion.” Id. at 1337 (citing Sims, 530 U.S. at 106-09, 120 S.Ct. 2080). In Belcher, the veteran raised an argument for the first time on appeal to this court that the Veterans Court failed to follow a VA regulation relating to service connection. Id. at 1336. We declined to consider the argument, holding that we lacked jurisdiction to hear it because it was not addressed by or presented to the Veterans Court. Id. at 1337.

The statutes and regulations thus impose a requirement of issue exhaustion in appropriate circumstances. While the requirement of exhaustion is relatively strict in proceedings before the Veterans Court, we have concluded that the non-adversarial nature of proceedings before the VA mandates a less strict requirement, as we now discuss.

II

In view of the non-adversarial nature of proceedings before the Board, it is appropriate in the first and second situations listed above that the Board and the Veterans Court give a liberal construction to arguments made by the veteran before the Board, as is specifically required by § 20.202 of the regulations in the case of appeals from the RO to the Board. “In various decisions we have made clear that the Board has a special obligation to read pro se filings liberally.”Robinson, 557 F.3d at 1358-59. In Robinson, we held that this obligation extends to cases in which the veteran is represented by counsel. See 557 F.3d at 1359-60. This obligation extends to all proceedings before the Board. It follows from the test articulated in Maggitt. See 202 F.3d at 1377.

Our prior cases have illuminated what is required by a liberal construction. In Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001), the Veterans Court affirmed the Board’s service-connection denial because the veteran had failed to allege TDIU. Id. at 1382. We held, in the context of clear and unmistakable error (“CUE”) claims, that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Id. at 1384 (quoting Hodge v. West, 155F.3d 1356, 1362 (Fed.Cir.1998)). Thus, “[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the `identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.” Id.

In Comer v. Peake, 552 F.3d 1362 (Fed. Cir.2009), we held that where the veteran made a claim for service connection and record evidence supported total disability based on TDIU benefits, the Board was required to consider that evidence as a TDIU claim even though the veteran had not specifically raised a TDIU claim. See id. at 1366-69. Comer held that the requirement to liberally construe a veteran’s arguments extended to arguments that were “not explicitly raised” before the Board. Id. at 1366.

Similarly, in Robinson, we held that where the veteran made a claim for service connection and record evidence supported secondary service connection, the Board was required to consider that evidence as a claim for secondary service connection even though the veteran had not specifically raised secondary service connection. 1381*1381See Robinson, 557 F.3d at 1361-62; see also Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed.Cir.2011) (“In light of the Board’s obligations to read veterans’ submissions liberally and to consider the full context within which those submissions are made, we conclude that section 7105(d)(3) does not impose such a[n explicit statement] requirement, at least in the context of a case involving the single factual question of the sufficiency of the veteran’s evidence to reopen a claim.”).

Roberson, Robinson, and Comer thus require the Veterans Court to look at all of the evidence in the record to determine whether it supports related claims for service-connected disability even though the specific claim was not raised by the veteran. They also require that veterans’ procedural arguments be construed liberally, but those cases do not go so far as to require the Veterans Court to consider procedural objections that were not raised, even under a liberal construction of the pleadings.

There is a significant difference between considering closely-related theories and evidence that could support a veteran’s claim for disability benefits and considering procedural issues that are collateral to the merits. As to the former, the veteran’s interest is always served by examining the record for evidence that would support closely related claims that were not specifically raised. As to procedural issues, that is not always the case. A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution. Under such circumstances, the failure to raise an issue may as easily reflect a deliberate decision to forgo the issue as an oversight. Having initially failed to raise the procedural issue, the veteran should not be able to resurrect it months or even years later when, based on new circumstances, the veteran decides that raising the issue is now advantageous. For this reason, absent extraordinary circumstances not apparent here, we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran, though at the same time giving the veteran’s pleadings a liberal construction.

In short, we hold that the Board’s obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the veteran fails to raise them before the Board. Under the balancing test articulated in Maggitt, the VA’s institutional interests in addressing the hearing issue early in the case outweigh Scott’s interests in the Veterans Court’s adjudication of the issue.

A review of Scott’s pleadings to the Board confirms that Scott did not raise the hearing issue in his current appeal to the Board. The regulations do not require that the Board or the Veterans Court address the veteran’s argument that the Board erred in not providing him with a hearing.

AFFIRMED

COSTS

No costs.

[1]See also Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) (“Ordinarily an appellate court does not give consideration to issues not raised below…. And the basic reasons which support this general principle applicable to trial courts make it equally desirable that parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding.”).

If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed.

38 C.F.R. § 20.202; see also 38 U.S.C. § 7105(d)(3) (“The appeal [to the Board] should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified.”).

[3] Section 7252(a) provides: “The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals…. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.” 38 U.S.C. § 7252(a).

After a decision of the [Veterans Court] is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation… or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.

Appeals process: The multi-stage appellate process is available to you after you have already received one or more decisions on your claim, but disagree with some aspect of VA’s decision. During the appellate process, an appeal undergoes additional independent reviews, often multiple times and by different adjudicators, as you or your representative submit new evidence and/or a new argument. Nearly 74 percent of appeals are from Veterans who are already receiving VA disability compensation, but are seeking either a higher level of compensation or payment from an earlier effective date.

1 Appeals and Claims are different

Claims defined

You submit a claim when seeking VA disability benefits (or increased benefits) for one or more medical conditions you believe are related to military service. These claims can be filed online through eBenefits, submitted by mail or in person at the nearest VA regional office. The claim submission, the military service and health care records and any other evidence associated with the claim are reviewed in order to provide you a rating determination.

The Appeals Process

The multi-stage appellate process is available to you after you have already received one or more decisions on your claim, but disagree with some aspect of VA’s decision. During the appellate process, an appeal undergoes additional independent reviews, often multiple times and by different adjudicators, as you or your representative submit new evidence and/or a new argument. Nearly 74 percent of appeals are from Veterans who are already receiving VA disability compensation, but are seeking either a higher level of compensation or payment from an earlier effective date. Continue Reading

When I represented Veterans at the Board of Veterans’ Appeals, my clients usually had a lot of questions about the appeals process and the differences between a claim and an appeal.

2 Appeals at the Regional Office

Once a VA office issues its decision on your claim, you have one year from that date to file an appeal. Read the decision letter closely: it will tell you why VA made the decision it did. If you are unsure why or how VA made its decision, ask a Veterans service officer for help. You can also call VA or go to your regional office.

If you disagree with VA’s decision for any reason – the effective date of your award, the rating percentage you were given or the reason you were denied – you should file a Notice of Disagreement (NOD). Continue Reading

3 Appeals at the Board of Veterans Appeals

Once the board receives your appeal, it assigns a docket date based on the date VA received your Form 9. This date is important: under the law, the board must work appeals in docket order. Currently, the median, or middle, docket date of appeals the board is working is July 2014. Some newer appeals can be pushed to the front of the line: those from older Veterans and survivors, those who are terminally-ill or those who have documented financial hardship, etc. It’s important to know that if the board remands (returns) your appeal to the regional office to gather more evidence, you won’t lose your place on the board’s docket. Continue Reading

There is a perception that a lot of the regional offices’ decisions are appealed to the Board of Veterans’ Appeals. This is not accurate. Historically, only 4 percent of all claims the Veterans Benefits Administration decides are appealed to the board.

4 When an appeal is remanded

Appeals are remanded for many reasons…if there has been a change in law, a worsening of a disability on appeal, the Veteran introduces new evidence or theory of entitlement at the Board or if the regional office did not process your claim correctly.

5 VA’s Plan

In my previous four posts, I discussed the difference between a claim and an appeal and the appeals process that occurs in the VA regional offices and at the Board of Veterans’ Appeals , as well as what happens if your appeal is remanded by the .

Board of Veterans Appeals

The Board of Veterans’ Appeals (also known as “BVA” or “the Board”) is a part of the VA, located in Washington, D.C.

Members of the Board review benefit claims determinations made by local VA offices and issue decision on appeals. These Law Judges, attorneys experienced in veterans law and in reviewing benefit claims, are the only ones who can issue Board decisions. Staff attorneys, also trained in veterans law, review the facts of each appeal and assist the Board members. {38 U.S.C. §§ 7103, 7104}

Anyone who is not satisfied with the results of a claim for veterans benefits (determined by a VA regional office, medical center, or other local VA office) should read the “How do I Appeal” pamphlet. It is intended to explain the steps involved in filing an appeal and to serve as a reference for the terms and abbreviations used in the appeal process.

The VA Regional Office [VARO] decides your claim initially. But if you disagree with their decision, you can ask for it to be reviewed within the VA, and then by the courts. First, you can request review by a Decision Review Officer within VA; Second, you can appeal a denied claim to the Board of Veterans’ Appeals.

If you are not satisfied with any part of the Board decision, you can appeal to the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”). The Veterans Court only handles BVA appeals on behalf of veterans. The Court website also has useful information about the appeal process.

Matt Hill: Welcome to another Hill & Pontin VA Disability Blog. My name’s Matthew Hill and I’m here with … Carol Ponton: Carol Pontin. Matt Hill: Today we’d like to talk to you about the Board of Veterans’ Appeals. What it is, how you get there, and what do you do there.

The VA Claims process can be long and confusing. Below is a simplified overview of the appeals process. The three main entities that handle a claim and its subsequent appeals are the VA Regional Office, the Board of Veterans Appeals, and the Court of Appeals for Veterans Claims. You begin by filing a claim for benefits with the Regional Office (RO).

I was just wondering if any one out there has heard of Dr. Bash? More importantly has any one used his services? And how did it work out for that person? If you can answer any of these questions please let me know. my email is rring2002@yahoo.com Please any information would be helpful.

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I have a few questions about helping a retired U.S. Army Veteran (Rank E-9) In part of our phone conversation last night(I know I need to ask him more questions) and Last night I had him request his C-FILE because his VSO never mention this he didn't know what a C-FILE Was. he has a VSO […]

I have received an IMO exactly stating as follows.......Veteran's _______is at least as likely as a result of his service related development of ___________. My question..... is this strong enough to pass VA muster on Appeal without the "or not" included...... or do I need a redo with the " as not" included before submitting? I […]

Back in May 2015 had a IME/IMO exam and was told I should put in a claim for deviated septum cause I had surgery for same while on active duty and again the same exact surgery in 2009 at VA. I had no intention of applying for it until it was brought up. I went […]

I am going to file for an appeal to go to the bva. I haven't decided who will represent me in my bva hearing, but I want to go ahead and file my form 9 so that I don't miss my 2-month window. I would like to ask for some suggestions on […]

“In denying the appellant a total rating based upon unemployability, the BVA did little more than point to appellant’s relatively advanced education and occupational experience and opine that his disabilities did not “preclude all forms of substantially gainful employment.”

This clearly is insufficient in providing “reasons and bases” for the decision.

Hatlestad v. Derwinski, U.S. Vet. App. No. 90-103, slip op. at 10 (Mar. 6, 1991) (BVA decision failed to explain the conclusion of the BVA that appellant was not unemployable)”

CounselRick Surratt (non-attorney practitioner) was on the brief for appellant. Robert E. Coy, Acting General Counsel, Barry M. Tapp, Assistant General Counsel, Andrew J. Mullen, Deputy Assistant General Counsel, and John D. Lindsay were on the pleadings for appellee. OpinionEditorial Information: Prior History On Appellee’s Motion for Summary Affirmance

Opinion by: HOLDAWAY {2 Vet. App. 27} HOLDAWAY, Associate Judge: The appellant, Alfred Gleicher, a veteran of World War II and a former prisoner of war, appeals a decision of the Board of Veterans’ Appeals (BVA) which denied him a total disability rating for a psychiatric disorder. The Court holds that the BVA was not clearly erroneous in determining that appellant was not entitled to a rating in excess of 70%. The Court also holds that the BVA was clearly erroneous in finding that appellant was able to follow or secure a substantially gainful occupation. Appellant, therefore, as a matter of law, is entitled to a total disability rating under _CFR_4.16 38 C.F.R. § 4.16 (1991).

FACTS The appellant served in the Army Air Corps during World War II. In July 1944, while serving as a flight officer on a B-24 crew, his aircraft was shot down and the appellant was forced to parachute into enemy territory where he was captured and held as a prisoner until termination of hostilities. He was awarded a 10% disability rating in 1947 for the residuals of gunshot wounds received during his capture. He apparently led a fairly normal life for many years, obtaining a degree in engineering and an advanced degree in management. However, as a result of his wartime experiences, the appellant began to develop psychiatric problems and was ultimately awarded a 70% disability rating by the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) for these problems on November 18, 1988. He appealed that decision to the BVA and requested a 100% schedular rating. In its decision, the BVA continued the 70% rating.

The facts that led to the 70% rating for severe psychiatric disturbance disclosed a man who had retired from his employment as an engineer in 1982 because he was having great difficulty in dealing with people. As his illness progressively worsened, he had withdrawn into a life where he was essentially a “loner.” It was noted in a VA psychiatric examination report of August 26, 1988, that appellant’s inability to trust people continued to make him an “unreliable potential employee” and that if he “was forced to associate with others he would become severely upset and probably become physically ill.” A VA social and industrial survey dated October 24, 1988, also concluded appellant was “incapable of securing or maintaining employment.” Nonetheless, despite these somewhat forbidding facts, the BVA found him employable and in support of that decision stated: “The veteran remains in contact with reality and his conversation is logical and coherent. In addition the veteran has significant educational and occupational experience . . . .”

DISCUSSIONThe appellant argues, firstly, that the BVA decision was clearly erroneous in failing to award a 100% schedular rating. Secondly, he argues that even assuming the BVA was not in error in failing to assign a 100% rating, he should, nonetheless, be given a total rating pursuant to 38 C.F.R. § 4.16 . Section 4.16 allows, inter alia, a total rating where a veteran with a 70% rating for a mental disorder is “unable to secure or follow a substantially gainful occupation.” We disagree with the appellant’s first contention, but agree as to his second one; we therefore affirm the decision {2 Vet. App. 28} of the BVA in part and reverse in part as discussed below.

A. We will deal summarily with the issue of whether, based on the severity of the appellant’s disability, the BVA was clearly erroneous in not assigning a 100% schedular rating. A decision as to the severity of a disability is a factual determination. Lovelace v. Derwinski, U.S. Vet. App. No. 90-55 (Oct. 31, 1990). This Court may not, of course, as to factual determinations made by the BVA, substitute its judgment for that of the BVA if there is a plausible basis for the decision. 38 U.S.C. § 7261 (a)(4) (formerly § 4061(a)(4)); Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 4-5 (Oct. 12, 1990). After a review of the record we are satisfied that the BVA’s determination as to the severity of the disability was fully supported by the evidence. It follows that a 70% schedular rating was appropriate; moreover its written decision was sufficient in giving “reasons and bases” for this determination. 38 U.S.C. § 7104 (d) (formerly 4004(d)). See Gilbert, slip op. at 11.

B. The BVA decision was, however, inadequate in dealing with the question of the appellant’s claimed unemployability. The BVA erred in finding that the veteran was able to follow or secure a substantially gainful occupation based on the evidence of record. It also failed to provide adequate “reasons or bases” for its conclusion.

In denying the appellant a total rating based upon unemployability, the BVA did little more than point to appellant’s relatively advanced education and occupational experience and opine that his disabilities did not “preclude all forms of substantially gainful employment.” This clearly is insufficient in providing “reasons and bases” for the decision. Hatlestad v. Derwinski, U.S. Vet. App. No. 90-103, slip op. at 10 (Mar. 6, 1991) (BVA decision failed to explain the conclusion of the BVA that appellant was not unemployable); Hyder v. Derwinski, U.S. Vet. App. No. 90-245, slip op. at 6 (Apr. 15, 1991) (BVA decision failed to give reasons or bases for the conclusion that veteran’s back disorder did not prevent her from substantially gainful employment in view of her age, education and work experience). In point of fact, to merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available, comes very close to placing upon the appellant the burden of showing he can’t get work. At a minimum, therefore, this case is deficient in providing a reasoned analysis for the decision that appellant was able to secure or follow a substantially gainful occupation. There is, however, an even more fundamental defect in the BVA decision.

A veteran with a 70% disability rating is entitled to an “extra schedular” total disability rating if he is unable to secure or follow a substantially gainful occupation as a result of the disability. _CFR_4.16 38 C.F.R. § 4.16 . Appellant meets the requirement in section 4.16 of having a mental disability rated to be 70% disabling. That rating was upheld by the BVA and affirmed by this Court in the instant decision. Appellant was awarded a 70% rating and would therefore be entitled to a total disability rating under section 4.16 if he is found unable to secure or follow a substantially gainful occupation.

As noted above, the BVA determined that appellant’s psychiatric disability was not of sufficient severity to preclude him from some form of substantially gainful occupation consistent with his education and occupational experience. We find that the BVA was clearly erroneous in its factual determination concerning employability. The facts principally relied on by the BVA, i.e., the appellant’s advanced educational and occupational experiences are, at best, equivocal. It could be argued with at least equal force that a person who has spent his employed life as an engineer and manager and who has a severe mental disability and minimal social skills is likely to be less employable than a person with similar disabilities whose occupation has not been as demanding as to the use of his mental faculties and social skills.

{2 Vet. App. 29} Moreover, in its evaluation, the BVA failed to consider the 1988 VA psychiatric examination report and the 1988 VA social and industrial survey, both of which concluded that the appellant was incapable of securing or maintaining employment. There is no evidence of record to the contrary. We have previously held that the conclusion of an examining psychiatrist is a medical conclusion which the BVA is not free to ignore. Willis v. Derwinski, U.S. Vet. App. No. 90-27, slip op. at 7 (Aug. 21, 1991). After a review of all the evidence we are left with a “definite and firm conviction that a mistake has been committed” concerning the BVA’s finding of fact as to the appellant’s employability. Gilbert, slip op. at 4. The BVA decision regarding appellant’s employability is implausible and thus clearly erroneous. Appellant is therefore entitled to total unemployability under _CFR_4.16 38 C.F.R. § 4.16 as a matter of law because he meets the requirements of the regulation. Accordingly, while we AFFIRM the BVA as to its decision that a 70% rating was appropriate for the appellant’s service-connected mental disorder, we REVERSE the decision as to employability and REMAND the case to the BVA with directions to assign the appellant a 100% rating in accordance with _CFR_4.16 38 C.F.R. § 4.16 .

There are three requirements to establish Direct service-connection for residuals of injuries and diseases;

1) In-service documentation of an injury or disease. 2) A current condition with a medical diagnosis. 3) and a medical nexus connecting 1 and 2.

An in-service injury/disease means that for the most part it must be documented in the veteran’s service medical records (SMR’s). One thing to keep in mind is that, generally, the in-service injury/disease must be shown to be “chronic” while in-service. If it is not shown to be a “chronic” condition while in-service, then you’ll more than likely need an Independent Medical Opinion (IMO) to substantiate the claim. If a veteran doesn’t have either a documented “chronic” condition, or an IMO, the VA will more than likely state that the claimed condition is “Acute and Transitory,” meaning that the injury/disease resolved itself and there is no residuals. A current condition with a medical diagnosis means that the claimed condition has to show current residuals from that in-service-injury, and it must have a current diagnosis from a physician.. A lot of times the diagnosis can and will be obtained from the VA C&P exam. If the VA sees that your condition was “chronic” while in the service, or that you have medical documentation of continuity of treatment since discharge, more often than not they will schedule the veteran for a C&P exam to obtain the needed diagnosis and current disabling affects of the claimed disability.

Something connecting the two means either continuity of treatment of the claimed disability from time of discharge to the present, or, if this is not the case, then an IMO will be needed from a physician. A lot of times an IMO is a critical part of the veterans claim. An IMO can sway the benefit of the doubt in the veteran’s favor if the claim is borderline, or it can flat out prove service-connection when one of the three components of establishing service-connection aren’t met! For example, by borderline I mean let’s say that a veteran was seen for lower back pain once while on active duty over a period of a five year enlistment. And now it is ten years since his discharge and the veteran hasn’t been seen for the lower back until recently, or only had one episode of back pain within those ten years since getting out of the military. The veteran will need an IMO stating something to the affect that his current lower back condition is some how related to the episode while on active duty. If the RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is very liberal in applying the regulation, he/she may award service-connection without the IMO. However, if the RVSR is “by the book,” then he/she may deny service-connection in the absence of a good IMO. An example of where an IMO can establish service-connection with which one or more of the three criteria listed above are absent would be, let’s say that a veteran was seen one time for a knee condition while on active duty and this incident is noted in his SMR’s. Ten years later the veteran is experiencing pain in that same knee but didn’t have any type of treatment since his discharge, he would need a really good IMO to establish that his current disability is somehow related to the in-service episode.

As far as presumptive service-connection is concerned, a veteran needs to be able to show that a condition listed in §3.307, §3.308, and §3.309 has manifested itself within the prescribed time limits after separation from the service. A presumptive condition does not need to be noted in a veteran’s SMR’s, hence presumptive, or it’s presumed that the said disability/disease occurred while in the service. There are some presumptive disabilities that do need to have manifested themselves within the first year after separation and to degree of 10% disabling in order to warrant presumptive service-connection. One common one is Arthritis.

Filing the claim: Once you have determined that you have met three basic criteria of disability compensation, you should then file the claim with your local Regional Office. There are two types of claims for initial service-connection; an Informal claim and a Formal claim.

An Informal claim is some type of communication to your local regional office in which you state you intend to apply for disability compensation. This communication can be a written letter, or fax, a telephone call or even an email. The best way, however, is something in writing. When a claimant makes an informal claim with VA, they need to clearly identify the disability for which they intend to apply for, give the VA your SSN and dates and branch of service, and make sure you send it via certified mail with return receipt! After you have sent your informal claim to VA, you have up to one year to send the VA your Formal Claim. In this one year period, I would recommend that you get together all of your medical records and so forth that will support your claim. If you send the VA your formal claim within the one year time period of the informal claim and VA grants your claim, the effective date, or the day you start to receive disability compensation, is the date of your informal claim. This could mean a lot of money in retro!

A Formal Claim for disability compensation is the VA Form 21-526. You should fill this out to the best of your ability. You should attach any Service Medical Records, Private Treatment records relevant to your claimed disability(ies), certified copy of your DD 214, copies of marriage certificates divorce decrees and dependent birth certificates. By attaching these documents, you’ll speed up the processing of your claim quite a bit. However, you do not need to attach those documents if you do not have them in your possession. If you do not have any of those medical records, the VA will assist you in obtaining those by asking you to fill out VA Form 21-4142 for each facility were those records are located. One important side note; make sure you sign the VA Form 21-526!!

Important: You do not need to submit an Informal claim. You can file VA form 21-526 without informing VA of your intention to file for disability compensation.

What happens after I file my Formal claim?

What happens after you file your claim: After you send VA your Formal claim, there are a number of “teams” at your local regional office that process your application.

There are essentially six “teams” at a Regional office that make up the “process.” When a veteran files a claim for benefits with VA, it is received at what is called a ‘Triage Team.’ This is where the incoming mail is sorted and routed to the different sections or other “teams” to be worked. Picture this as a Triage unit at a Hospital. There they decide who goes where according to the injury/condition involved. This is the way it works at VA too. The main function of the Triage Team is to screen all incoming mail. Within the Triage Team there are other sub components; the Mail Control Point, Mail Processing Point, and to a certain extent supervision of the files activity. The mail control point is staffed with VSR (Veteran Service Representatives) who are actually trained in claims processing. This is also where they receive and answer the IRIS inquiries. The mail processing point is where chapter 29/30 claims (a bit later on theses types of claims) are processed/awarded, and to a certain extent dependency issues are resolved.

The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol – HadIt.com Member fanaticbooks

Something to be aware….Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version.

Use them wisely.

The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers.

Coding of the letters… FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin